ROGER ARONOFF: our guest today is Hans von Spakovsky, Senior Legal Fellow and Manager of the Civil Justice Reform Initiative at the Heritage Foundation’s Center for Legal and Judicial Studies. Today we’ll be talking about issues relevant to the upcoming election, including concerns about the integrity of the election, the Obama Justice Department, and other related issues that we will be getting into. Good morning, Hans! We’re pleased to have you here today on Take AIM!

HANS VON SPAKOVSKY: Thank you, Roger. I appreciate being on with you.

ARONOFF: Great. Before we dig into these issues, I want to tell our listeners a bit more about your background. Hans von Spakovsky researches and writes about aspects of election law, such as campaign finance, voter fraud, and voter identification, as well as registration and equipment issues. Before joining the Heritage Foundation in 2008, he served two years as a member of the Federal Election Commission, the authority charged with enforcing campaign finance laws for Congressional and Presidential elections, including public funding. Previously, von Spakovsky worked at the Justice Department as Counsel to the Assistant Attorney General for Civil Rights, providing expertise in enforcing the Voting Rights Act and the Help America Vote Act of 2002. A former litigator, in-house counsel, and senior corporate officer in the insurance industry, von Spakovsky worked on tort reform and civil justice issues there for more than a decade. He also has served on the Board of Advisors of the U.S. Election Assistance Commission, and on election boards in Georgia and Virginia. His analysis and commentary have appeared in The Wall Street Journal, The Washington Times, Politico, Human Events, National Review Online, and Townhall. He has testified as an expert before state and Congressional committees, and other organizations. Again, Hans, welcome—in fact, welcome back—to Take AIM. We really appreciate your being here today.

VON SPAKOVSKY: Sure thing.

ARONOFF: So, with the election in just a few days, the polls indicate a large Republican victory—a gain in the House, people are saying, anywhere between 40 and 100 seats, in the Senate, more like eight to eleven—but a lot of people are very concerned that there is widespread fraud being planned and, in some cases, already in play, that could significantly change those figures. With a hodgepodge of state laws and various types of ballot, what is the mechanism in effect that is supposed to keep the voting honest?

VON SPAKOVSKY: The biggest thing is having election officials who actually pay attention to the law, and make sure that they have clean voter lists and good officials in their precincts. The other part of that is, frankly, poll-watchers. You have people, unfortunately, on the Left, and in the Democratic Party, trying to make it tough for poll workers to be there, trying to say that they’ll “intimidate voters”—but having poll-watchers, frankly, from both parties—in the polling places on election day, watching each other like a hawk, watching election officials make sure that everything is done the way it should—that is the best guarantee of secure and safe elections.

ARONOFF: And that, you would say, largely works throughout the country?

VON SPAKOVSKY: I think it does work—except for places where, sometimes, election officials make it tough for poll-watchers to be there, and in places where election officials don’t do what they should. The biggest example right now, as you probably know, is Harris County, where a Tea Party organization that started up, called “True the Vote,” has been going through the voter registration lists down there, checking it, and even in a small sampling, they’ve found all kinds of problems: They’ve found people who weren’t U.S. citizens but were registered to vote, and therefore they’re going to be able to vote on Election Day; they checked some registered addresses and found that they consisted of vacant lots, which is clearly a bogus or fraudulent registration. They actually turned that information over to Harris County, and Harris County, I think, actually reacted well, saying that they were going to try and check this out. What happened? They got sued—both Harris County and True the Vote got sued by the Texas Democratic Party, saying, “Well, no, you can’t do that! You can’t clean up your voter registration rolls!”

VON SPAKOVSKY: That’s exactly right. Look: Because I believe in clean voter registration rolls, I’ve been labeled as a “vote suppressor” by a Left-wing blog site, because I think people ought to have to show a photo ID when they go in to vote. That’s called “wanting to intimidate voters from voting.” Those kinds of claims are ridiculous, but that’s the kind of thing that is said when people, when regular citizens get concerned over, and want to make sure we have, a secure election.

ARONOFF: Let’s talk about that, and the different types of ballots and things. You just brought up the identification—for instance, in the state of Georgia, where you were, at one time, on the County Board of Registrations and Elections, didn’t they pass a law requiring picture IDs, but the Obama Justice Department came in and said, “You cannot enforce that”?

VON SPAKOVSKY: Georgia was one of the few states around the country that did what they should have, and passed a photo ID requirement, and Georgia was sued by many organizations, including the NAACP, claiming that this would “disenfranchise,” particularly, minority voters. They actually lost that suit in court—one of the reasons they lost was, the NAACP, for example, couldn’t produce a single one of their members who didn’t either have a photo ID, or couldn’t easily get one. That law was in effect in the 2008 elections, and they had record turnout—record turnout, even among African-American voters. They had more African-Americans turn out to vote than they ever had in a prior election. So it quickly showed that all these claims about “disenfranchisement” are just false.

ARONOFF: As of today, they do require that people bring a photo ID when they vote?

VON SPAKOVSKY: Yeah. What the Obama administration did try and do is, they tried to stop Georgia from verifying the citizenship status of newly registered voters, and Georgia actually had to sue in federal court, and once they actually sued, and the Obama administration was faced with the prospect of having to show a federal judge evidence to back up their claim that this was somehow “discriminatory,” the Obama administration quickly backed down, agreed to settle the case, and agreed to allow Georgia election officials to check to make sure that people who are registering to vote are really U.S. citizens.

ARONOFF: Well, we just had a Ninth Circuit Court of Appeals decision yesterday, I guess it was, that ruled part of an Arizona referendum, passed a few years ago, that says people have to prove their U.S. citizenship before they can register to vote—that was thrown out, but it left in effect the part that says they can require photo ID.

VON SPAKOVSKY: Yeah, but I got to tell you: That panel decision was really a nutty decision. In fact, it was three judges, two-to-one. Judge Kozinski, who dissented, pointed out all the problems with it, including the fact that a prior Ninth Circuit panel had upheld that kind of requirement. One of the judges who said “You just can’t do this” was, unfortunately, retired Supreme Court Justice O’Connor. Even in retirement, she’s still issuing bad decisions. I’m very sure this decision’s going to get overturned.

ARONOFF: It seems like such obvious common sense that people should be required to provide proof of identity. We’re asked for so many other things. Currently, how many states, for instance, do not require that?

VON SPAKOVSKY: Probably about half the states don’t require an ID

ARONOFF: Amazing. Amazing.

VON SPAKOVSKY: Which, to me, also—you know, we are one of the few, and only, democracies in the world that doesn’t require photo ID when you go vote. Even Mexico—even Mexico, which has a much larger number of people who are poor than we—they require a photo ID.

ARONOFF: So what about some other voting methods? How are they subject to fraud and corruption? For instance, early and absentee and mail-in voting? Who’s minding those ballots? Is it different in each state, precinct?

VON SPAKOVSKY: It is different in each state, and, unfortunately, absentee ballots—that’s really the tool of choice, of people who want to steal ballots. A city commissioner in Daytona Beach was just arrested yesterday for absentee ballot fraud. We have a trial that is just starting up in Atlantic City because thirteen people there, including city councilmen, were indicted for absentee ballot fraud, and, I think, just this past week something happened that I’ve never seen before, which is, in Troy, New York, the local DA there has asked for DNA swabs of various officials who he’s investigating for having engaged in absentee ballot fraud in one of the last elections. He wants to compare their DNA with the DNA on the fraudulent absentee ballots.

ARONOFF: Amazing. How would you break down—how many, what percentage, of these fraud cases that are on the docket, so to speak, involve Democrats, versus how many involve Republicans?

VON SPAKOVSKY: Unfortunately, these days, it’s overwhelmingly Democrats who are involved in this. The one exception to that, in the past, has been the state of Kentucky, where, unfortunately, the Justice Department has prosecuted a number of local Republican officials for vote buying. It’s very unfortunate, but Kentucky has a long tradition of paying for votes. But other than that, really, the overwhelming majority of these cases are against Democrats, and, frankly, often—this is, probably, to a lot of people, surprising—it’s not so much Democrats stealing votes from Republicans. Often it’s Democrats stealing votes from other Democrats—particularly in primary elections.

ARONOFF: Hmm. My question, again—who is minding these ballots? It’s one thing when you talk about how there are poll-watchers, and there are people from both parties on the day of the elections, but when this is going on for 30 days or more, and these ballots come in, where are they every night? Who’s watching them? Who knows what’s there?

VON SPAKOVSKY: Well, unfortunately—again, we have a real deficit when it comes to the federal government’s involvement in this. I can tell you, because I know from people I talk to within the Obama administration, that they have absolutely no interest whatsoever in prosecuting voter fraud cases. It’s just not something that interests them. That was also demonstrated this year in their reluctance to get into enforcing the federal law that guarantees the right of military people to vote overseas, and, also, the fact that they have completely failed to go after states who haven’t cleaned up their voter registration lists by taking people who are dead, or people who have moved, off of their lists. That’s actually a real scandal, but they haven’t done anything about that. There’s a number of states—for example, Arkansas, Colorado, Maryland, Massachusetts, Oregon, Tennessee—who, when they filed a federal report last year that they’re required to file, showed that they hadn’t removed a single person who had died from their voter registration rolls for two years. I guess that’s a good place to move—they must have invented the Fountain of Youth.

ARONOFF: How do they defend that, not going after any of these people?

VON SPAKOVSKY: Officials in Oregon, I have found, are extremely complacent—in fact, frankly, somewhat arrogant—about their all-mail voter registration system. They just think it’s the best thing in the world, and when you ask them about it, they just say “We just do everything we need to”—despite the fact that that really isn’t true.

ARONOFF: What about electronic ballots versus ballots that you write on or punch holes or chads? What’s more subject to abuse out of those two?

VON SPAKOVSKY: I think the problem, really, is not so much the ballots themselves as not having clean voter registration rolls so that people who shouldn’t be voting—because they don’t really exist, or they’re registered more than once, or aren’t U.S. citizens—can go in and vote, whether it’s on electronic machine or whether it’s using paper ballots that are then scanned and counted. There have been some reports in Nevada of electronic machines already having votes on them—I haven’t really seen yet whether there’s any evidence that that’s really happening—but I don’t think it’s so much the method people use to vote, it’s whether or not we’ve got good voter registration lists, and whether or not local officials are checking to make sure that we only have real people voting, who should be voting.

ARONOFF: You mentioned the military vote—this is amazing, because, to try and block their vote because, presumably, they assume a higher percentage of them are going to be voting Republican, but to not send them their ballots on time, and, even when this is called to their attention, they say, “We don’t have time,” or whatever—you’d think they’d FedEx them on the next plane or something. It’s incredible. That should be a full-blown scandal, covered nightly on the evening news, and—it’s not even…

VON SPAKOVSKY: It should be, and, Roger, you and I both know that if that—look: There were reports than an election official in Illinois, a couple of weeks ago, said that he just didn’t really care about overseas military voters, and he didn’t care about whether the Justice Department came after him for that. Can you imagine if he had said the same thing about African-American voters? That would have been front-page news in every newspaper in the country, and that guy would be out of office by now. And yet, he gets away with doing things like that for military voters—and I bet you most of your listeners probably haven’t heard about this.

ARONOFF: I think you’re right. Speaking of the African-American voters, we had this issue with the New Black Panthers, and even though, when they had failed to come forth and the charges against them were in effect, but the Eric Holder Justice Department dropped the charges against them—we’ve had now testimony from J. Christian Adams and the other gentleman from that office. Tell us: What do we know about that? Is that likely to be an issue again this year?

VON SPAKOVSKY: I think it will be an issue, because what it tells us about the Civil Rights Division—which is the division of the Justice Department that’s responsible for enforcing our federal voting rights laws—is that they have an attitude, and the attitude is, they’re not really interested in investigating any kind of cases that involve possible discrimination, or possible problems, by black election officials. In fact, that is something that we should be worried about, because the voting rights laws are there to protect all Americans from discrimination, for example, and to protect them against problems in the voting area, no matter what their race. But that is not the attitude of the Obama administration. If there are any problems that arise again, or if there are problems that are claimed by white voters—I mean, I can tell you, this administration just isn’t interested in investigating that kind of thing.

ARONOFF: “Equal justice under the law,” huh?

VON SPAKOVSKY: That’s not something they think.

ARONOFF: No. And another one: What about ACORN? This is the so-called “community activist” group which President Obama used to do some work for, and which has been caught up in scandal after scandal for paying people to vote, to vote multiple times, registering people falsely, fraud and embezzlement by the founder of the group—then, of course, the James O’Keefe exposé, when they tried to help an underage hooker from Central America to game the system, at least as far as they thought. Didn’t Congress vote to defund them? Or are they still a factor this year?

VON SPAKOVSKY: It seems like other organizations are stepping into what ACORN used to do. The SEIU, for example: There are allegations that an organization called “Mia Familia”—that the SEIU, actually, has set up and is running—has stepped into what ACORN used to do, which was submit, unfortunately, lots of fraudulent voter registration forms. There are claims that that’s going on in Arizona, and claims that it’s happening, also in Colorado. We haven’t seen any announcement by the Justice Department that they’re going to investigate any of this—in fact, the Justice Department never went after ACORN for the kind of actions they were engaging in. It took state officials in some states—like, in fact, Nevada—Nevada actually went after ACORN for this, but the Justice Department never did, and we don’t hear or see any indication that they’re going to investigate these kind of problems by ACORN-like organizations, or the kind of things that the SEIU is now, apparently, doing to cover what ACORN used to do.

ARONOFF: I thought I understood that ACORN, in some instances, basically just changed its name and, in some cases, the address—and in some cases they didn’t even change the address—and just sort of slipped into the woodwork that way. Is that accurate?

VON SPAKOVSKY: There is some evidence that, in fact, that has been happening. I think one of the people in Washington that’s actually been very interested in trying to go after this, as you know, has been Congressman Darrell Issa. His office is very concerned about that happening.

ARONOFF: You mentioned the SEIU, which is the labor union that has supported Obama and the Democrats, probably, more than any other group, and whose former president, Andy Stern, was the most frequent visitor to the White House, I believe the records show. I saw a report where they are, in fact, doing maintenance, or maintaining, some of the electronic voting systems in a number of states. Is that true? How can that be?

VON SPAKOVSKY: I did see the same, I think, reports that you did, although I really haven’t seen that fleshed out yet as to how much of a problem that is.

ARONOFF: All right. Another form of voter fraud, I guess, is allowing felons to vote, as well as dead people to vote. Is that something out of the ’60s, or is that still happening?

VON SPAKOVSKY: As you know, there was a report from a very good group that got together in Minnesota and started checking voter registration rolls. They submitted evidence, and it seems to be, in fact, correct, that Minnesota election officials have not been doing what they’re supposed to do, which is taking the people who are in prison, felons, off their voter rolls. One of those organizations found that, for example, during the big Senate contest between Norm Coleman and Al Franken—which, as you know, was only decided by about 300 votes—they had not taken people who were felons, and who shouldn’t be voting, off of the voter rolls there, and there have actually been prosecutions going on of felons for voting. But the problem is, the Secretary of State, Mark Ritchie—someone who was, in fact, supported by ACORN and by people like George Soros—hasn’t been really doing his job the way he should in cleaning up the voter rolls and getting those folks who shouldn’t be voting off of the rolls. That is always a problem in a close election, as we saw in that Senate race. In any election that we have that’s close, anywhere in the country in the upcoming election, we need to be worried about that—if the states aren’t doing what they should in that area.

ARONOFF: Back to that Franken victory. Would you say that was a case where they were able to have enough votes because of voter fraud, or was it more the political and judicial process where, sort of, the fix was in, and they wanted to give it to him, and found justifications to do it? Or do you think it really came out to be the most fair and honest assessment of the actual votes?

VON SPAKOVSKY: I think there were big problems in the way election officials there handled that race, particularly the fact that we now are seeing evidence that, in a race that came down to the wire, and was only decided by a couple of hundred votes, that, in fact, there were people voting who shouldn’t have been voting because they weren’t eligible to vote—like felons—hundreds of whom, apparently, stayed on the rolls and voted in that election.

ARONOFF: One more form of voter fraud I want to ask you about—or tampering with elections, I guess it would come under that category—is where people just pay cash or gift cards, or offer food to people if they will come vote for a particular candidate, and they’ll take them there—is that still going on much? Is anyone watching that?

VON SPAKOVSKY: I don’t think it’s going on as much as it used to. You know, that used to be the standard way that votes were stolen, for example, in places like Chicago, which was infamous for its voter fraud. I don’t think that goes on as much, any more, as it used to, but it’s still something that we need to keep a vigilant eye on. I don’t think it’s as big a problem as it used to be, but we’ve got to be very careful that we keep watching for that and make sure that that doesn’t happen. The worst place that happens is, unfortunately, in poor neighborhoods, because that’s something that bad campaigns will try to take advantage of—particularly when it comes to trying to get homeless people who are, unfortunately, subject to that kind of thing. I haven’t seen a lot of evidence that that’s happening, but that doesn’t mean that we don’t need to be careful that that doesn’t happen again.

ARONOFF: I want to touch on some of the issues regarding campaign finance. You did an article last month about the DISCLOSE Act and how President Obama was characterizing it in which you argued that his argument was clearly false. Tell us about that.

VON SPAKOVSKY: The campaign, unfortunately, has tried to say that, for example—they’ve made a lot of claims about the U.S. Chamber of Commerce getting money from overseas, and it turned out that they had absolutely no evidence that that was happening. They tried to make a big deal about it, and they tried to say that this DISCLOSE Act—which was a bill that was being pushed in Congress—would somehow prevent that. Well, that law actually was a law that, if it had been passed, would have really restricted the ability of a lot of non-profit organizations to participate—and it wouldn’t have prevented unions from doing things that they shouldn’t be doing in elections. I just don’t think that the President got that right. I think he was trying to scare people in the election and, and I don’t think it was a good thing to do.

ARONOFF: I think you said that, for the first time, corporations and labor unions were going to be treated differently as a result of that Act—if it had passed.

VON SPAKOVSKY: Yes. I think that is very much true and, fortunately, that law didn’t get passed despite a lot of false claims in that area. It’s something that we’ve still got to be vigilant about. We’ve got to watch the kind of false claims that have been made about that—frankly, you know, by the President.

ARONOFF: The DISCLOSE Act, as I understand it, again, is that people, if they wanted to put up money for organizations who were going to be running ads for candidates, that they would have to have their name—the names of the individuals or corporations who put up the money would have to be in those ads. Is that correct? Then what’s the problem with that?

VON SPAKOVSKY: Well, look: We already have very strict federal laws on disclosing who pays for ads. You know that I don’t particularly have a problem with that kind of disclosure by candidates, and that’s pretty strict—but what they were trying to do, really, was pass a federal law that would scare off people who wanted to engage in what’s called “independent expenditures.” That’s when independent organizations—organizations, for example, like the National Rifle Association, which is an organization that a lot of people support—would put out ads that went after candidates that they didn’t like who were not good on gun control. The DISCLOSE Act was really trying to scare off people from being able to do that. It’s not a good thing if that kind of a law would get passed.

ARONOFF: And how does the DISCLOSE Act tie in, in any way, with the Citizens United case that Obama famously criticized in front of the Supreme Court Justices during his State of the Union Address?

VON SPAKOVSKY: Well, it ties into that because they didn’t like what the Citizens United case came out and said. That was actually a really good decision by the U.S. Supreme Court, but that is something that they really wanted to reverse. So far, that hasn’t happened. The kind of provisions that Democrats wanted to push through to overturn that decision, fortunately, haven’t happened—but it’s something we’ve got to remain vigilant over and make sure that it doesn’t get reversed.

ARONOFF: Why should corporations be treated as people and have First Amendment rights? What is the rationale for that?

VON SPAKOVSKY: Look: The rationale there is that we really don’t want the government coming in and saying who can and can’t speak in the political arena—and that, I think, is actually a good thing. Look: Corporations are not going to spend huge amounts of money on elections, but if, for example, a non-profit—and they have to take the corporate form for a lot of reasons—but if, in fact, we have a very large government, and we have Congress, doing the kind of things that it does, we still want to be sure that people can speak about it if they think that something is going on that shouldn’t be.

ARONOFF: I want to ask you a couple questions about the media. First of all, the media coverage of this issue, that all of this potential voter fraud and all that is out there: How well have the media, the mainstream media, covered these issues?

VON SPAKOVSKY: They haven’t. You and I both know that they don’t like to cover that issue. They don’t think it’s something that they should be covering. I just don’t think that they’ve done a good a job. The New Black Panther voter intimidation case is one that the mainstream media has ignored for a year and a half—particularly the fact that this Justice Department threw that case out even though they won the case—and yet mainstream media has done almost no coverage of that.

ARONOFF: And how about the media giving over so much free time to President Obama? I mean, it’s really been quite amazing how all the networks cover the same show. He’s on for an hour, and he’s on here, and he’s on all these shows. That feels unprecedented to me. Is there any issue of giving too much sort of in-kind contribution to a political party by doing this? Do you see anything out of the ordinary, or that should be looked at in any way?

VON SPAKOVSKY: I just think that there needs to be more even coverage. That is something that hasn’t happened. I’m not quite sure. You’ve covered that much better than other folks have. I’m not sure what we can do about it. You know, the Internet—the one good thing about it is that it’s given ordinary people the ability to go around sources like The New York Times, which doesn’t like to cover things that they don’t want other folks to see.

ARONOFF: I want to cover one more topic here, and that is something called FairVote, or the National Popular Vote Plan, which, I suspect very few people have heard of—speaking of a lack of media coverage. A—have you been following it, and B—what is your opinion of this?

VON SPAKOVSKY: Yes, this is really something that’s been flying under the radar. That is a way of trying to get around the Electoral College, it’s really not a thing that most people have been paying attention to.

ARONOFF: Why don’t you briefly describe it, so then they’d know what it is?

VON SPAKOVSKY: This is a way of getting around the Electoral College by having states award who their Electoral College votes get passed to not based on the votes and the way people vote in a state but based on the—

ARONOFF: The total national popular vote.

VON SPAKOVSKY: The total national vote. So even if folks in one particular state, for example, voted for the Republican, who they thought should win in their state, if that Republican lost nationally the votes in their state would not get awarded the way they voted in that state. It would—

ARONOFF: And, amazingly, this has been passed already in a number of states. Maryland recently did, I believe New York—do you know how many states have already passed this?

VON SPAKOVSKY: Unfortunately, it is a number of states that have passed, and it’s something that—no, I don’t have the total in front of me, but it’s something that is a way of getting around the Constitution and what we do now.

ARONOFF: Right. I believe the way it works is when enough states have passed it whose combined electoral votes total, I believe, 270—which is the number needed to win—then this would automatically go into effect. It wouldn’t require a Constitutional amendment. They call it a “compact between the states.” It’s sort of a reaction to the 2000 election, but, if anything, I think they’re drawing the exact wrong lesson because—look: There, at least, the whole issue was isolated to one state, and even certain counties in one state—where if you had a close national vote you would have to go back and count every precinct around the country, and recount all of them to try to come up with it. So it’s just counterintuitive as well as being an improved situation in my mind.

VON SPAKOVSKY: No, I think you’re right about that. You know, people think we had to wait for a while to figure out what happened in one state—but this particular plan would mean that there would be fights in every city, in every county, all over the country trying to go back and recount the vote—and there would be fights everywhere, and it could be a very long time before that election would get resolved.

ARONOFF: So, in wrapping up here, tell us how concerned you are about the integrity of this upcoming election next Tuesday. Do you think the outcome is going to reflect the intent of the voters? Or are we going to wake up on Wednesday and kind of be shocked to find that all the polls were wrong, and be left to suspect how much of that is a result of voter fraud and the various things we’ve talked about today?

VON SPAKOVSKY: I think if it’s not a close election, then, hopefully, we will be okay—but I’ve got tell you, any place where it comes down to the wire, any place around the country where we have a really close election, well, that’s when we have to be worried, because anytime you have a really close election where a small number of votes is going to make the difference—like what happened in Minnesota—that’s when people who can put out bogus votes, that’s when the temptation is greatest, and that’s where it can really make a difference. Any time we have a close election, that’s when we’ve got to be vigilant the most.

ARONOFF: All right. Our guest today has been Hans Von Spakovsky, Senior Legal Fellow and Manager of the Civil Justice Reform Initiative at the Heritage Foundation Center for Legal and Judicial Studies. Tell our listeners where they can find you on the Internet and read your articles.

VON SPAKOVSKY: Actually, if they go to www.heritage.org they can find me, but otherwise, really, if they just do a Google search for me, they’ll find my latest articles.

ARONOFF: I want to thank you so much for being here with us today on Take AIM.